United States District Court, D. South Carolina, Rock Hill Division
Charles Wayne Clinton, as personal representative of the Estate of Ricky Clinton; Charles Wayne Clinton, individually, Third-Party Plaintiffs,
American National Property and Casualty Company, Third-Party Defendant
For Charles Wayne Clinton, individually and as personal representative of the Estate of Ricky Clinton, ThirdParty Plaintiff, Counter Defendant: Garrett Johnson, Elrod Pope Law Firm, Rock Hill, SC.
For American National Property and Casualty Companies, ThirdParty Defendant, Counter Claimant: George V Hanna, IV, Howser Newman and Besley, Columbia, SC.
ORDER AND OPINION
Margaret B. Seymour, Senior United States District Judge.
The within action was commenced by SPARTA Insurance Company (" SPARTA" ) on April 23, 2013, against Smarr's Tree Service, LLC (" STS" ); John B. Smarr (" Smarr" ); Charles Wayne Clinton, as personal representative of the Estate of Ricky Clinton; Charles Wayne Clinton, individually (together " Clinton" ); and Alison Clinton. SPARTA sought a declaration from the court that its commercial insurance policy issued to STS did not provide coverage for a collision that resulted in the death of Ricky Clinton. On July 18, 2013, Clinton filed a third-party complaint against American National Property and Casualty Company (" ANPAC" ), seeking to recover under an automobile insurance policy held by Smarr (the " Policy" ). On September 20, 2013, ANPAC filed an answer and counterclaim seeking a declaration as to any sums owed under the Policy.
On November 15, 2013, the parties filed a stipulation of dismissal as to all first party defendants. Thereafter, on December 13, 2013, Clinton filed a motion for summary judgment as to the third-party complaint. ANPAC filed a cross-motion for summary judgment on January 9, 2014. Also on January 9, 2014, ANPAC filed a response in opposition to Clinton's motion for summary judgment. Clinton filed no response in opposition to ANPAC's motion. On February 3, 2014, Clinton filed a motion to supplement the record with excerpts from the deposition of Smarr. On February 4, 2014, ANPAC filed a motion to supplement the record seeking to supplement the record with the Smarr's deposition. Both motions were granted, and on February 28, 2014 ANPAC filed Smarr's deposition.
The court has reviewed the entire record and the applicable law. The court concludes that Clinton's motion for summary judgment should be granted, ANPAC's motion for summary judgment should be denied, and the third-party complaint dismissed, with prejudice.
ANPAC issued to Smarr the Policy, which was a family automobile policy covering the period from August 7, 2011 to February 7, 2012. See ECF No. 19-1. The Policy included coverage for a 1989 Ford F-350 Super Duty pickup truck (the " Ford" ), and included bodily injury liability in the amount of $250,000. The Policy
further provided an exclusion from liability " while any vehicle is used to carry persons or property for a charge." Id. at 30. The Ford is used primarily by Smarr for farm work. Answer, ¶ 9, ECF No. 10.
Smarr is in the business of trimming and cutting trees from commercial and private property in the York, South Carolina, area. Smarr apparently did business as Smarr's Tree Service commencing in 2003. In 2008, Smarr converted his business to STS, a limited liability company. Smarr is the sole member of the limited liability company. See ANPAC Mot. for Summ. J., 1 ECF No. 33. STS's customers typically request that the property be cleared of the debris that is created in during the job, such as chips, brush, firewood, or logs. Dep. of John Smarr, 9, 18, ECF No. 41. In those cases, STS charges the customer for the cost of clearing the debris in addition to the cost of cutting and trimming. The cost for clearing debris comprises a substantial portion of the cost of the tree service. Id. at 18. STS generally gives away the chips and firewood, and if the logs appear to have some value, will sell them to a sawmill for lumber. Id. at 18-20.
On January 31, 2012, Smarr and his employees were engaged in cutting trees at a number of properties. Id. at 10. Smarr was using a bucket truck and a chip truck that were owned by STS and insured by SPARTA, as well as the Ford insured by ANPAC. Id.; see also ECF No. 33, 2. Smarr felled a number of logs and loaded them onto the Ford for transport to the sawmill. Id. at 20. One of the employees commenced driving the Ford south on U.S. 321 near Clover, South Carolina. At approximately 6:15 p.m., the Ford became disabled in the left-most of the two south-bound lanes. Around 6:30 p.m., Ricky Clinton, who also was ...